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Updated 07/05/2007

Human Rights–War on Terror News Update—July 5, 2007

1. Supreme Court, Congress address Guantánamo issues
2. Military judges dismiss charges against two Guantánamo prisoners
3. U.S. residents cannot be held as enemy combatants, appeals court says
4. Enemy combatant classification hearings flawed, says Army officer
5. Italian trial of CIA agents postponed
6. German prosecutors seek extradition of CIA agents
7. ACLU files lawsuit against Boeing subsidiary for complicity in extraordinary rendition
8. FBI ordered to release national security letters
9. Appeals court rules against warrantless reading of e-mails
10. Report finds U.S. deportation efforts not focusing on terrorism

1. Supreme Court, Congress address Guantánamo issues
In a reversal of a decision made less than three months earlier, the U.S. Supreme Court on June 29 agreed to hear the appeals of two groups of Guantánamo detainees who are challenging their lack of access to federal courts to contest their detention. The Military Commissions Act of 2006 stripped detainees of the right to use the federal court system to challenge their confinement. Earlier in June, the Senate Judiciary Committee advanced a bill that would restore that right. Supporters of the bill aim to attach it to the fiscal year 2008 defense authorization bill, expected to be brought to the Senate floor before the summer recess.

Also on June 29, a group of 145 members of the House of Representatives sent a letter to President Bush urging him to close the Guantánamo Bay, Cuba detention center and move the detainees to military prisons in the United States. On May 17 the House approved an amendment to its version of the defense authorization bill requiring the secretary of defense to create a plan within 60 days of the bill’s passage to transfer all detainees out of Guantánamo. In the Senate, Diane Feinstein (D-Calif.) and Tom Harkin (D-Iowa) have proposed separate bills to close the prison, but are expected to combine their proposals into a single bill. Harkin’s version requires the government to charge or release the detainees while Feinstein’s version does not. If the Senate bill passes, it must then be reconciled with the House version. [Jurist, 5/18/07; AP, 6/7/07; The Hill, 6/21/07; Miami Herald, 6/29/07; NY Times, 7/3/07; past story: HRWT News Update, 6/08/07]

2. Military judges dismiss charges against two Guantánamo prisoners
In a ruling that is likely to affect the ability of the Bush administration to proceed with military tribunals at Guantánamo Bay, military judges on June 4 dropped all charges against the only two prisoners currently on trial at the detention center. In the cases of Omar Khadr of Canada and Salim Ahmed Hamdan of Yemen, the judges ruled that they did not have jurisdiction to prosecute the men because of the strict definition of those subject to trial under the Military Commissions Act of 2006. The men were classified as “enemy combatants,” but the law only permits trials for those determined “unlawful enemy combatants.” Khadr was charged with killing a U.S. soldier during fighting in Afghanistan when he was 15 years old and Hamdan is thought to have been a chauffeur for Osama bin Laden. Legal experts believe hearings to establish whether “enemy combatants” acted “unlawfully” could allow military tribunals to proceed. [Reuters, 6/4/07; AP, 6/5/07; NPR, 6/5/07]

3. U.S. residents cannot be held as enemy combatants, appeals court says
A three-judge panel of the 4th U.S. Circuit Court of Appeals ruled in 2-to-1 vote on June 11 that the president cannot hold U.S. residents in indefinite military custody as “enemy combatants.” The ruling was in regard to Ali al-Marri, a Qatari national who was living in Illinois with his wife and five children when he was arrested in December 2001. Initially charged with credit card fraud, he was later declared an enemy combatant because of allegations that he was part of an al-Qaeda sleeper cell. He has since been held without charge in solitary confinement at a military brig in Charleston, S.C. and is the only U.S. resident classified as an enemy combatant. The ruling requires the government to charge al-Marri in the civilian court system or release him. The government claimed that the Military Commissions Act of 2006 removed enemy combatants from the jurisdiction of U.S. courts, but in writing the majority opinion Judge Diana Motz said, “The MCA was not intended to, and does not apply to aliens like al-Marri, who have legally entered, and are seized, while legally residing in the United States.” The government has said it intends to appeal the decision. [CNN, 6/11/07; Democracy Now!, 6/12/07, past story: HRWT News Update, 2/16/07]

4. Enemy combatant classification hearings flawed, says Army officer
In an affidavit filed with the U.S. Court of Appeals for the District of Columbia on June 22, an Army officer who held a key role in the Combatant Status Review Tribunals at Guantánamo Bay said they used incomplete evidence that barely met legal standards in determining whether detainees were “enemy combatants.” Lt. Col Stephen Abraham, who is an Army reserve officer and a lawyer, was a liaison between the tribunals and U.S. intelligence agencies in 2004 and 2005. The affadavit was filed on behalf of Fawzi al-Odah, a Kuwaiti held at Guantánamo Bay who is challenging his classification as an enemy combatant. In the document Abraham stated, “What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence.” His affidavit is the first criticism by a member of the military panels. [AP, 6/22/07; Jurist, 6/22/07; al-Odah v. U.S.A. affidavit, 6/22/07]

5. Italian trial of CIA agents postponed
Italian judge Oscar Magi ruled on June 18 to postpone the trial of seven Italian intelligence officers and 26 Americans for the alleged kidnapping and torture of Hassan Mustafa Osama Nasr. The Italian government said prosecutors violated state secrecy regulations by pursuing the case and requested the trial be put on hold until the Italian Constitutional Court rules on the matter, likely in October. The 26 Americans charged are believed to be CIA agents whom the U.S. government refuses to extradite to Italy. Prosecutors allege Nasr was kidnapped from Milan in 2003 and flown to Egypt, where he was tortured with electric shocks and beatings. They say CIA agents performed the operation with the assistance of Italy’s military intelligence agency, SISMI, whose former chief is one of the Italians charged. This is the first trial regarding the practice of “extraordinary rendition,” in which terror suspects are transferred to countries known to practice torture. [Reuters, 6/18/07; AP, 6/18/07; past story: HRWT News Update, 3/2/07]

6. German prosecutors seek extradition of CIA agents
German prosecutors announced on June 25 that they will ask the German government to request the extradition of 13 CIA agents suspected of involvement in the kidnapping and rendition of Khalid al-Masri in 2003. Al-Masri claims he was kidnapped from Macedonia and held for five months in a secret prison in Afghanistan, where he was subjected to physically abusive interrogations, and then released without charge in Albania. The German government can refuse to request the extraditions if they deem them harmful to the public interest. The United States is not expected to cooperate should there be an official extradition request. [Reuters, 6/25/07; Jurist, 6/25/07; past story: HRWT News Update, 2/2/07]

7. ACLU files lawsuit against Boeing subsidiary for complicity in extraordinary rendition
The American Civil Liberties Union on May 30 filed a lawsuit in the U.S. District Court for the Northern District of California against the Boeing subsidiary Jeppesen Dataplan, alleging the company facilitated CIA flights for the transfer of prisoners to countries that are known to practice torture. The suit is brought on behalf of three detainees: Binyam Mohamed, Elkassim Britel, and Ahmed Agiza, who are from Ethiopia, Italy and Egypt, respectively. Mohamed is currently being held at Guantánamo Bay, Britel in Morocco, and Agiza in Egypt. All three claim to have been abused and tortured while being detained by the CIA or after transfer to local authorities. [AP, 5/30/07; Jurist, 5/30/07; ACLU press release, 5/30/07]

8. FBI ordered to release national security letters
Judge John Bates of the U.S. District Court of the District of Columbia ordered on June 15 that the FBI release about 100,000 pages of documents describing the FBI’s use of national security letters. The Patriot Act gives the FBI the power to use national security letters to bypass courts to demand telephone, Internet and other businesses give personal information about customers. The ruling was in response to a Freedom of Information Act request by the Electronic Frontier Foundation, an organization focused on civil rights in the use of electronic media. The EFF brought the suit after an audit by the U.S. inspector general in March found the FBI had improperly used national security letters by collecting information without actually issuing letters and using letters outside the context of any investigation. [AP, 6/15/07; Jurist, 6/16/07; past story: HRWT News Update, 3/15/07]

9. Appeals court rules against warrantless reading of e-mails
On June 18 a three-judge panel of the 6th U.S. Circuit Court of Appeals upheld a lower court ruling that e-mails are entitled to the privacy protections of the Fourth Amendment and cannot be searched by the government without a warrant. The prompting suit was brought by Steven Warshak, president of an herbal supplement company, whose e-mail was searched without a warrant as part of a fraud investigation against him. The law in question was the 1986 Stored Communications Act, which was amended by the Patriot Act in 2001. The amended law required Internet service providers to hand over e-mails stored for more than 180 days if they were related to an ongoing criminal investigation, but the court ruling will now require the government to show probable cause and produce a warrant. The government may appeal the ruling to the full 6th Circuit Court or the Supreme Court. [AP, 6/18/07; E-Commerce Times, 6/21/07]

10. Report finds U.S. deportation efforts not focusing on terrorism
A May 27 report by an academic research institute cast doubt on the Bush administration’s claim that immigration authorities with the Justice and Homeland Security Departments have anti-terrorism as their top priority. The Transactional Records Access Clearinghouse at Syracuse University found that of the approximately 800,000 people the government tried to deport between 2004 and 2006, only 12 cases were on terrorism grounds. Of the 14 terror-related charges brought in those cases, only four have been upheld by immigration judges. The authors of the report acknowledge that they do not address the issue of how many potential terrorists immigration authorities may have prevented from entering the United States. [AP, 5/28/07; Jurist 5/28/07]

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